JUDGMENT
Sharfuddin, J.
1. The plaintiff is the appellant. His suit was for confirmation of possession or in the alternative to recover possession of the suit land.
2. The facts of the case are that there was one Nathu Mahton who had two sons, namely, Lallu Mahton and Jagat Bihari Mahton. Lally had a son named Munshi Mahton. Lally died, and Jagat Bihari also died leaving his widow Musammat Dako Koer.
3. The principal defendant in the case is Munshi. Musammat Dako is also one of the defendants.
4. The claim of the plaintiff is based on a deed of sale executed by Musammat Dako. It appears that Nathu Mahton was the head of the joint family. Lallu and Jagat Behari were joint. So after Lallu and Jagat Behari’s deaths the estate according to the law fell into the hands of Munshi Mahton. This Munshi Mahton, however, is a minor. Musammat Dako his aunt executed a document for sale of the minor’s property. The defendant No. 1 defended the suit through his guardian one Farhat Husain a Pleader appointed by the Court as his guardian ad litem. He contested the suit on the ground that Musammat Dako had no business to sell the property in as much as the sale proceeds never benefited the minor. It appears from the contents of the deed of sale that the property was sold to pay off a certain debt incurred for the performance of gaya sradh of Jagat Behari.
5. The Munsif dismissed the suit. On this there was an appeal by the plaintiff to the lower Appellate Court and the appeal thus preferred was dismissed by that Court, upon which, the present appeal has been preferred to this Court.
6. The first question for determination is whether Musammat Dako was the legal guardian of the minor and whether the sale proceeds by the sale of the property were in any way used for the benefit of the minor. Under the Hindu Law as discussed by Mayne in Section 211 of his book the father is the guardian and next to him the mother and in default of her, a paternal kinsman who has preference over the maternal kinsman. Musammat Dako is not the mother of the minor. She is only an aunt having married the uncle of the infant. She is, therefore, not a natural guardian of the minor. That being so, the sale effected by her of the property which really belongs to the minor could not be an effective sale.
7. Then comes the question as to whether the sale proceeds were used for the benefit of the minor. The plaintiff’s case is that the money was really obtained for payment of a previous debt incurred for the performance of the gaya sradh of Jagat Behari. The question is whether the performance of this gaya sradh was at all beneficial to the minor. I do not see how the said sradh could at all be considered beneficial to the minor either in this life or in the life to come. This being my view of the question involved I am of opinion that the judgments of the two Courts below are correct and cannot be assailed. For these reasons the appeal is dismissed with costs.
Roe, J.
8. I agree. The father’s brother’s wife cannot possibly be the natural guardian. For in all disputes as to whether the family is joint or not her interests are directly antagonistic to those of the minor. I also agree that the only ceremonies that need be performed out of the property of a deceased uncle are the monthly, six-monthly and annual obsequies as laid down by Thomas Strange in Volume I, Chapter VIII.